DAVID FREDERICK CUCKOW v AXA INSURANCE UK PLC

Insurance conditions requiring the insured to give or provide information reasonably requested by the insurer may operate as conditions precedent where the policy clearly so provides and the information is commercially important to investigation, defence or contribution claims.

The obligation is not confined to documents physically possessed when requested. It may extend to information in documents previously held but lost or disposed of where the insured had knowledge of their importance and the loss involved fault. Innocent loss or non-existence will ordinarily make the request unreasonable. The court must construe the policy as a whole and assess both the reasonableness of the request and whether the obligation was breached.

The claimant obtained judgment against Mark Group Limited for defective cavity wall insulation. Mark Group was insolvent and the claimant pursued AXA, its insurer, under the Third Party (Rights Against Insurers) Act 1930.

AXA declined indemnity after administrators failed to provide the contract and pre-installation survey documents requested in November 2018. The County Court held that the policy conditions were breached because the documents had been lost or disposed of when Mark Group or its administrators knew, or ought to have known, that they might reasonably be required.

The claimant appealed on contractual construction, knowledge, fault in the disposal of documents, the status of the conditions, and the ability to raise new points on appeal.

1. Appeal dismissed. The policy’s Claims Notification Condition and Claims Procedure Condition were conditions precedent. Their wording stated that non-compliance could entitle AXA to refuse payment, and the requested information was central to defending the underlying claim and pursuing contribution or indemnity claims.
2. The court applied the ordinary principles of contractual construction, including objective meaning, the policy as a whole, commercial purpose and avoidance of absurd results. The relevant question was not solely whether the documents were in the insured’s possession when requested. The court had to assess both whether the request was reasonable and whether the obligation had been breached.
3. A request for information in documents which never existed, or which had been innocently lost, would ordinarily be unreasonable or incapable of breach. The position differed where important documents previously held by the insured had been intentionally, recklessly or carelessly lost or disposed of with knowledge that they might reasonably be required by the insurer.
4. The administrators had knowledge of the importance of the documents because claims had already arisen, the limitation period remained relevant, and the documents were obviously necessary to investigate liability and possible contribution claims. Their failure to identify, preserve and retain the documents in 2015–2016 was careless. Their refusal in 2018 to make proper enquiries despite knowing where storage records might be found was intentional. Those matters together established breach.
5. Section 2 of the Third Party (Rights Against Insurers) Act 1930 required the company to provide information reasonably requested by a person asserting liability. It did not create a general duty to retain documents and did not resolve the distinction between innocent and fault-based loss.
6. The court permitted the original grounds and certain legal points raised late, but refused permission to withdraw the concession that negligence or carelessness could suffice. The appeal was dismissed on all grounds. The claimant was ordered to pay AXA’s appeal costs on the standard basis.

• High Court (King’s Bench Division): appeal from the County Court at Kingston-upon-Hull dismissed. The court upheld the judgment of HHJ Richardson dated 1 February 2021.